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Associations and the Future of the First Amendment

The association community needs to begin to pay very close attention to issues related to the exercise of First Amendment rights in the United States. We don’t often stop to think about how associations got started in the first place. Associations formed due to the innovative mash-up between the imported organizational ideas and structures developed in the guilds of Northern Europe and the implementation of the Bill of Rights enshrined by the Founders in our United States Constitution. Associations owe their very existence to the protections afforded our citizenry and we cannot allow any encroachment upon them.

We owe Alexis de Tocqueville a debt of gratitude for chronicling the explosion of associations on the American scene in his seminal 1835-1840 work, “Democracy in America.” (If you have not read this book, I highly recommend that you do. It gives a valuable perspective on the body politic and is a good refresher for those of us who haven’t paid attention to civics in a while.) The following are only two excerpts that I believe not only highlight the value of associations in the burgeoning American republic but remain true to this day:

“The morality and intelligence of a democratic people would risk no fewer dangers than its business and its industry if the government came to take the place of associations everywhere. Sentiments and ideas renew themselves, the heart is enlarged, and the human mind is developed only by the reciprocal action of men upon one another. I have shown that this action is almost nonexistent in a democratic country. It is therefore necessary to create it artificially there. And this is what associations alone can do.“

And this:

“There is nothing, according to me, that deserves more to attract our regard than the intellectual and moral associations of America. We easily perceive the political and industrial associations of the Americans, but the others escape us; and if we discover them, we understand them badly because we have almost never seen anything analogous. One ought however to recognize that they are as necessary as the first to the American people, and perhaps more so. In democratic countries the science of association is the mother science; the progress of all the others depends on the progress of that one. Among the laws that rule human societies there is one that seems more precise and clearer than all the others. In order that men remain civilized or become so, the art of associating must be developed and perfected among them in the same ratio as equality of conditions increases.”

This is all well and good. However, we need to get back to the basics and get back to them quick. We aren’t “businesses.” We aren’t just here to “serve the members.” We don’t exist in a vacuum all by ourselves. What affects one, affects all. We must recognize the fundamental reason we have the power to do what we do lies first and foremost in the First Amendment. The body of corporate law that underpins our activities flows from there.

As a reminder, the First Amendment states:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”

We have gotten to the point where we consider these things so “automatic” as to make them boring. It is almost inconceivable that we would need to even consider what life would be like without them. However, the First Amendment is not a dusty relic of another age. It is not esoteric or anachronistic. Complacency is dangerous. Associations must remain awake and aware of any attempts on the part of any political party and/or individual or group of individuals in power to begin to erode these critical Constitutional rights either in direct legislative action or the implementation of practices that chill the exercising thereof.

I call on the association and non-profit communities to collectively resist any attempts to encroach upon these rights that we hold precious in any way – whether regarding religion, speech, press, assembly or directly petitioning the government for redress. We must all support individuals and/or other associations when or if they come under fire. It isn’t enough to retreat behind your membership and assume “it doesn’t affect your profession or industry so why get involved?” When you see individuals attacked for their faith, protesters attacked as “economic terrorists,” the “mainstream media” being denounced or threatened, make no mistake – you (and by extension your members) are under attack as well. Your memberships, communications, magazines, journals, educational activities, certifications and professional standards, programs, legislative days and advocacy efforts all depend on our collectively maintaining these rights as sacrosanct.